BEFORE THE

STATE OF CALIFORNIA

OCCUPATIONAL SAFETY AND HEALTH

APPEALS BOARD

In the Matter of the Appeal of:

NARCO PLASTERING
1340 East San Fernando Street
San Jose, CA 95116

 

                              Employer

 

 

Docket No.

01-R1D4-9229
through 9232

 

DENIAL OF PETITION

FOR RECONSIDERATION

The Occupational Safety and Health Appeals Board (Board), acting pursuant to authority vested in it by the California Labor Code hereby denies the petition for reconsideration filed in the above-entitled matter by Narco Plastering (Employer).

JURISDICTION

Between February 23, 2001, and August 15, 2001, a representative of the Division of Occupational Safety and Health (the Division) conducted an inspection at a place of employment maintained by Employer at 1441 Forenza Court, Pleasanton, California (the site).

On August 16, 2001, the Division issued to Employer citations for general violations of sections 1509(a) [Injury and Illness Prevention Program (IIPP)]; section 1509(c) [posting Code of Safe Practices]; section 1637(n)(1) [access to scaffold platforms]; and serious violations of section 1621(a) [railings]; 1644(a)(6) [securing railings]; and 1644(a)(7) [platform planks] of the occupational safety and health standards and orders found in Title 8, California Code of Regulations.1

Employer filed an appeal on September 25, 2001. The Board denied the appeal as untimely on April 14, 2002. Employer filed a petition for reconsideration on May 6, 2002.

EVIDENCE

No hearing has been held in this matter. The Board relies upon its independent review of the record in this case including the pleadings and correspondence submitted by each party, the citations, and the certified mail return receipt indicating that Employer received the citations on August 20, 2001.

ISSUE

Has Employer established good cause for filing a late appeal?

REASONS FOR DENIAL
OF
PETITION FOR RECONSIDERATION

Labor Code section 6319 states that an “employer has 15 working days from receipt of the notice [of citation] within which to notify the appeals board that he or she wishes to contest the citation or order…”

Title 8, California Code of Regulations, section 359 states:

(a) Except as provided in Section 361.1(b), an appeal shall be deemed filed on the date a communication indicating a desire to appeal the Division action is hand delivered, mailed to, or received by the Appeals Board in Sacramento, California, whichever is earlier. No particular format is necessary to institute the appeal.
(b) The time for filing any appeal may be extended or a late filing permitted upon a written showing of good cause that contains sufficient facts to show or establish a reasonable basis for the late filing.
(c) A request to file a late appeal shall be accompanied by a declaration containing a statement that any facts therein are based upon the personal knowledge of the declarant.

On August 20, 2001, at the U.S. Post Office, Employer’s owner received and signed for a mailing sent certified, return receipt requested, from the Division. He gave the unopened letter to his secretary. Employer’s owner states that he was on vacation from August 21, 2001 to September 24, 2001, and when he returned he found the unopened letter from the Division containing the citations. The deadline to appeal was September 11, 2001. Employer initiated its appeal by phone on September 25, 2001, 14 days late. Employer’s secretary states that when the owner is on vacation she communicates with him by telephone regarding phone messages and mail that has been received. She states that she apparently misplaced the envelope shortly after she received it because he found it unopened when he returned.

We still feel that good cause does not exist in this case to extend the filing period.

Kaweah Construction Company, Cal/OSHA App. 87-9005, Denial of Petition of Reconsideration (Mar. 5, 1987) is the seminal Appeals Board case on good cause when the proffered excuse is that the citations did not timely reach the desk of the appropriate party. In Kaweah, the employer asserted it did not file a timely notice of appeal because its field engineer did not tell any supervisor that citations were received and the notice of civil penalty got “lost in the paper shuffle before reaching the President’s desk.” (Kaweah, supra, at p. 2.) The Appeals Board determined that when a document is lost in the paper shuffle in an office, and an untimely notice of appeal results, no good cause exists to justify an extension. (Ibid.)

Since Kaweah, the Appeals Board has consistently held that when a notice of appeal is untimely filed because of internal operating procedures good cause does not exist. (See, Del Monte Glass, Inc., Cal/OSHA App. 87-9009, Denial of Petition of Reconsideration (May 7, 1987) [paperwork sent to the company did not “arrive in proper hands” until too late]; Cleveland Wrecking Company, Cal/OSHA App. 92-9054, Denial of Petition of Reconsideration (Nov. 18, 1992) [branch manager did not properly handle citation]; Jesse Aguirre, Farm Labor Contractor, Cal/OSHA App. 93-9013, Denial of Petition of Reconsideration (June 10, 1993) [appeal misplaced during move of its office]; and Laselco Pacific, Cal/OSHA App. 96-9084, Denial of Petition of Reconsideration (July 16, 1996) [citations directed to president of company who was on extended business trip].) It “is the appellant’s obligation to put procedures into place that will ensure that important documents it receives are processed in a timely manner.” Jesse Aguirre, Farm Labor Contractor, supra, at p. 2.)

Like the cases cited above this case presents an example of a failure of an employer’s internal operating procedures. Under the facts presented in this case, like the facts presented in American Alliance Always Available dba Drain Patrol, Cal/OSHA App. 01-9051, Denial of Petition of Reconsideration (July 24, 2001), we believe that we are properly exercising the discretion vested in the Appeals Board by insisting on timely appeals.

Employer further suggests that the letter sent by the Board on October 4, 2001 requesting the completion and return of enclosed appeal forms caused Employer to believe that the appeal was accepted by the Board as timely. The Board’s letter directed Employer to return the completed appeal forms by October 18, 2001. Employer sent the completed appeal forms on October 16, 2001.

Employer’s claim is misplaced. The Board’s letter dated October 4, 2001 specifically acknowledged receipt of Employer’s “intent to appeal” effective September 25, 2001, which “is hereby acknowledged as the date of your appeal for purposes of determining whether it was timely filed”. (See §359(a).) It further directed Employer to complete and timely return the enclosed appeal form in order “to perfect your appeal.” (§359.1(b))2

Both the letter and the cited regulations distinguish between two requirements for “filing” an appeal and “perfecting” an appeal. The 15 working day period to file an appeal begins to run from an employer’s receipt of a citation issued by the Division, not from the receipt of appeal forms sent to it by the Board. (Lab. Code §6601.) The 15 working day deadline is plainly stated on each citation and as the Board has previously held, provides adequate notice of the appeal period. (See Brick “N” Wire, Inc., Cal/OSHA App. NDN, Denial of Petition for Reconsideration (Feb. 10, 1981.) When an appeal is initiated by means other than the submission of an appeal form with the citation attached, the Board has no way of knowing the issuance date of the citation or the service date of the citation from which to calculate the 15 working days to determine the timeliness of an appeal until the forms are returned with the citations attached. Once the forms and citations are submitted, the Board may need to request the certified mail return receipt to determine exactly when the citations were received by an employer, to determine the timeliness of an appeal.

Since Employer was informed that September 25, 2001 was the effective date for purposes of determining whether the appeal was timely, any reliance upon the deadline for submitting completed appeal forms—for purposes of perfecting an appeal and determining its timeliness—is unjustified and misplaced.

DECISION

The Board affirms its Order Denying Late Appeal issued April 4, 2002.


MARCY V. SAUNDERS, Member GERALD P. O’HARA, Member

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
FILED ON: June 24, 2002

1 Unless otherwise specified all references are to sections of Title 8, California Code of Regulations.
2 Failure to timely return the completed appeal forms may provide an independent basis for dismissing the appeal (§359.1(b))